C2, harkening back to the old hypester/basher days in my opinion Ms Toensing is a brought and paid for partisan. I note that you seem to be fixating on “ad hominem” and to my knowledge I’m the only one who has brought it up in the past couple of days. So, in the sprit of attacking her argument and not her personally, let us deconstruct her WSJ op-ed. (and yes my opinion of her argument does get sprinkled liberally throughout, no pun intended.)
…FISA's "primary purpose" became the basis for the "wall" in 1995, when the Clinton-Gore Justice Department prohibited those on the intelligence side from even communicating with those doing law enforcement. The Patriot Act corrected this problem and the FISA appeals court upheld the constitutionality of that amendment, characterizing the rigid interpretation as "puzzling." The court cited an FBI agent's testimony that efforts to investigate two of the Sept. 11 hijackers were blocked by senior FBI officials, concerned about the FISA rule requiring separation.
Message 22174444
First she tells a pejorative story that does not encompass the facts as they now exist.
Sections 218 of the Patriot Act changes primary purpose to significant purpose and section 504 tears down the so-called wall. See page 12 of this FBI memo on how it simplified their life.
fas.org
…And to correct an oft-cited misconception, there are no five-minute "emergency" taps. FISA still requires extensive time-consuming procedures. To prepare the two-to-three-inch thick applications for non-emergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. The attorney general is not going to approve even an emergency FISA intercept based on a breathless call from NSA…
This is crap too. The old “emergency” standard was 24 hours. Congress – by Administration request – after 9-11 changed it to 72 hours. So your statement here that:
…don't see anything wrong with getting a revised FISA from Congress. In fact, a revised FISA is absolutely necessary given the fact that it takes weeks it takes to get an order from the Intelligence Court….
Message 22174022
was incorrect in both implication and in fact.
However, in fairness, that’s not to say that even the 72 hours couldn’t be a problem since the Judge must approve within that time or anything collected while the Judges decision was pending is lost.
Yes, I’ve read Hindraker’s and York’s apologia….
Is that 72 window a Problem? Yes. Could it have EASILY been corrected without disclosing sources and methods? YES. All the Administration needed to do is ask for an Amendment that the tap could be maintained until the Judge ruled. Did they ask for that? NO.
Her statement that you need a 2-3 inch application was just plain hyperbole. Consult the relevant information. Nevertheless, what one may have needed 10 years ago or 5 years ago, one doesn’t need today.
…Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda agent A is captured in Afghanistan and has agent B's number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring agent C just because he landed on U.S. soil?
So first she said 5 minutes, now she gets the 72 hours right. Seemingly a glaring error for one so experienced, knowledgeable and skilled. Let’s put that aside and focus on her example. The law does not say you can’t monitor a foreign person on US soil. It says you cannot monitor a US person without a warrant. A US person is defined as:
"United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 101(a)(20) of the Immigration and Nationality Act), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an associated which is a foreign power, as defined in 50 U.S.C. §1801(a)(1), (2), or (3). See 50 U.S.C. §1801(i).
She hasn’t constructed an accurate analogy. Yet she’s a skilled, high-priced DC Attorney. Either an amateurish mistake or deliberate distortion. I'll let the thread decide.
She writes:
Why did the president not ask Congress in 2001 to amend FISA to address these problems? My experience is instructive. After the TWA incident, I suggested asking the Hill to change the law. A career Justice Department official responded, "Congress will make it a political issue and we may come away with less ability to monitor." The political posturing by Democrats who suddenly found problems with the NSA program after four years of supporting it during classified briefings only confirms that concern.
First and foremost, Congress DID ACT. The Patriot Act is huge. It passed 99-1 in the Senate. He statement is either a bald-faced lie or a deliberate distortion. Nevertheless, it is not for her or the Administration to “second guess” what the Congress should do, or shouldn’t do, will do or won’t do. The Executive must comply with the law and execute its duties at the same time. If it needs authority, damn it ask. Otherwise, don’t whine. They’d at least have a very small fig leaf of plausible deniability if this was a Democratic Congress, or even and a Republican Congress with a modicum of independence, but neither is the case. Finally see complains about "politcal posturing" of Democrats - 4 democrats briefed on the program and under criminal sanction not to disclose. That statement was maddening or laughable, I'm not sure which.
So is running a Country hard? Yes. Is protecting a Country hard? Yes. Is politics hard? Yes. Do you have to work with the legislature? Yes. Do you have to compromise? Yes.
But that’s their damn job. My job is hard too.
…The issues are vastly more complicated now, requiring an entirely new technical paradigm, which could itself become obsolete with the next communications innovation.
Perhaps true, but it’s the job of the Congress to observe the requirements of the 4th Amendment – which limit both its [Congress] and the President’s ability to do what they wish – in a changing technological environment. The Constitution didn’t foresee telegraph, telephones, radio, computers and or space flight for that matter, but we seem to adapt. I know a heck of a lot more about the technology than she does, and either she knows little – or is lying. In an earlier post on this thread I noted that because of technical and economic factors most international traffic is going through NY, LA and Miami. It’s a treasure trove and NSA should be right there in 60 Hudson, 1 Wilshire and NAP of the Americas.
But this is different, and the Administration knows it and is trying to hide it. Its arguments are totally specious. Ms. Toensing adopts those arguments as her own.
No one, NO ONE, says that we shouldn’t be conducting surveillance of suspected terrorists. That is not the issue, notwithstanding how much the Administration wishes to spin it so. The issue is how to conduct surveillance without infringing the 4th Amendment of the Constitution.
Its not like this hasn’t come up before. This has been argued for the past 30 years, past 50 years. Read the legislative and judicial history.
fas.org
Ms. Toensing and the Administration trivialize and insult former Congresses and Courts as being either knaves or fools. The history as shown in the CRS report shows that our past elected representatives and Judges treated these issues in the most serious, considerate and intellectually rigorous way.
Finally, as noted above, FISA has the 72 hour safe harbor, and the Administration could have asked for the simple change I noted above to get around any excuse - at all - for not complying with FISA. They did not.
They fact that they did not, forces one to ask why. I think the odds are pretty favorable that somewhere – buried within the main body of the NSA program – is a small group who is tapping the Administration’s political opponents and feeding that data to insiders
This exact type of abuse of power, which almost all Administrations pre-FISA engaged in, was the exact thing FISA was enacted to curtail while fulfilling the National Security interest of the United States. Would you like to make the argument that this Administration is a bunch of Boy Scouts -- that somehow the character of man has changed in 30 some odd years so that such protections are no longer necessary? Be my guest making that argument – 6,000 years of human history argues against you. And I've got a Bridge to sell you - and some penny stock too.
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